In Canada, the health care system is primarily the responsibility of the provincial and territorial governments. The system is publicly funded by revenue raised through federal, provincial, and territorial taxes. Canada’s Constitution also grants primary regulation of professions to provincial and territorial governments. In Canada, most provinces and territories treat midwives as licensed medical professionals and provide government funding for their services. The doula profession does not appear to be regulated by any law/regulation or official governing body in Canada, nor are doula services covered by provincial health care plans.
I. Canadian Health Care System
The organization of Canada’s health care system is mostly determined by the Canadian Constitution, including the Constitution Acts, 1867 to 1982, “in which roles and responsibilities are divided between the federal, and provincial and territorial governments.” The provincial and territorial governments have primary responsibility for “delivering health and other social services.” The federal government is also “responsible for some delivery of services for certain groups of people.” The law firm McMillan LLP provides the following overview of the complexity of the constitutional allocation of responsibilities in respect to health:
Canada, like the United States, is a federal state with a constitution that divides legal authority between the federal government and, in Canada’s case, the provinces. In some areas of the law, however, the Canadian Constitution provides no exhaustive or explicit grant of authority, and health care is one of those amorphous areas. The Constitution allocates direct power over hospitals to the provinces and the remaining authority to regulate health care is derived from more general Constitutional powers that are divided between the federal and provincial governments. The result is that provision of health care in Canada is funded, delivered and regulated under a complex mosaic of rules and rule-makers, and the rules are constantly evolving. Broadly speaking, the federal government is primarily responsible for the regulation of drugs and medical devices, while the provinces and territories are primarily responsible for the delivery of health care and health insurance, and for the regulation of health professionals. The federal government also exerts significant control over provincial health insurance programs through its spending power. Due to the potential conflicts that result from this power sharing, all levels of government rely on the court system to clarify jurisdictional issues.
Section 92 of the Canadian Constitution Act, 1867, assigns jurisdiction to the provinces over making “laws in relation to property and civil rights in the province.” According to one article,
[t]he Supreme Court of Canada and other courts have interpreted property and civil rights under s. 92 of the Canadian Constitution Act, 1867 to include regulation of professions. A fundamental component of these enabling laws made by provincial and territorial governments is the identification of regulatory authorities/bodies that are responsible for protection of the public through the self-regulation of professions and occupations.
The Health Canada website states that “[p]ublicly funded health care is financed with general revenue raised through federal, provincial and territorial taxation, such as personal and corporate taxes, sales taxes, payroll levies and other revenue.” Provinces can also “charge a health premium on their residents to help pay for publicly funded health care services, but non-payment of a premium must not limit access to medically necessary health services.” Essentially, Canada’s healthcare is “funded by a ‘single-payer’ system, but it doesn’t function as one single, unified system. Coverage is publicly-funded, meaning that the funds come from federal and provincial taxes.” Canadians can also purchase private insurance coverage to “help defray from the cost of care which is not covered by the universal services.”
The federal Canada Health Act was enacted to establish the “criteria and conditions in respect of insured health services and extended health care services provided under provincial law that must be met before a full cash contribution may be made” by the federal government to provincial and territorial governments. This is referred to as the Canada Health Transfer (CHT), which is the “largest major transfer to provinces and territories. It provides long-term predictable funding for health care.” The provincial and territorial governments “receive equal, per capita funding for health care from the federal government through Canada Health Transfer payments.”
Health Canada, the federal department that is responsible for national public health, provides direct health services to specific groups including certain indigenous peoples.
II. Regulation and Funding of Midwives
Most Canadian provinces and territories currently treat midwives as licensed medical professionals. In the 1990s, “midwifery began to be legally recognized as a profession in certain Canadian provinces and territories by the introduction of provincial or territorial legislation to regulate midwifery.” In 1994, the Province of Ontario became the first province to implement legislation to regulate midwifery as a “publicly-funded, integrated health service, which can be seen as a turning point in the history of regulated midwifery in Canada.” Regulation in British Columbia, Alberta, and Quebec followed in the late 1990s. Midwifery was most recently regulated in Newfoundland and Labrador in 2016. Though New Brunswick established midwifery as a regulated profession in 2010, it only began offering midwifery services in 2017.
Midwifery is now regulated in all provinces and territories except for Prince Edward Island and Yukon, “where it is unregulated and unfunded, the only birth option with midwives would be at home, and mothers would pay for services of midwives.” The expected date for midwifery regulation in Yukon is late 2019.
Provincial and territorial legislation regulating midwifery differs slightly but also “possess[es] many common features,” which include
- The identification of midwifery as an autonomous health care profession distinct from other health professions such as medicine or nursing
- The recognition of midwives as primary health-care practitioners. In some cases, a midwife may be the first point of entry for a person seeking maternity care services
- Legal protection regarding who can use the title of midwife. Where the title is protected, only those persons who meet the requirements of midwifery legislation can legally call themselves a midwife
- A defined scope of practice that includes providing maternity care to healthy women and their newborns during pregnancy, labour, birth and up to six weeks postpartum
- The authority to establish procedures for monitoring, enforcing and holding midwives accountable for the legislative requirements of regulated midwifery. This includes the authority to receive and investigate complaints against members, to remove the authority to practice from midwives who are found to be in violation of the standards of practice and finally to establish quality assurance processes that enhance client safety and improve the quality of midwifery care.
Midwifery is a “self-regulated profession in which implementation and enforcement of midwifery legislation is delegated to a professional body referred to as a College of Midwives. Such colleges are governed by members of the profession and may include government-appointed public members.” The regulations provide “specific instructions regarding how legislation is to be operationalized and enforced and provide the regulatory body with the authority to set and enforce standards of practice.” Midwifery regulations include “specific authorities and requirements” in areas such as the following:
- Requirements and processes for registration and maintaining registration
- Standards of practice
- Prescription of medications, procedures and devices
- Screening and diagnostic tests that can be ordered, received, and interpreted
- Minor surgical and invasive procedures that can be performed
III. Regulation of Doulas
The doula profession does not appear to be regulated by any law/regulation or official governing body in Canada, nor are the services of doulas covered by provincial health care plans. Doulas are typically paid out of pocket, but some private insurance companies have started to cover doula care.
Foreign Law Specialist
 Canada’s Health Care System, Health Canada, https://www.canada.ca/en/health-canada/services/health-care-system/reports-publications/health-care-system/canada.html (last updated Feb. 26, 2018), archived at https://perma.cc/35FG-M2GD.
 Constitution Acts, 1867 to 1982, https://laws-lois.justice.gc.ca/eng/const/FullText.html, archived at https://perma.cc/YMX4-452V.
 Canada’s Health Care System, supra note 1.
 McMillan LLP, Health Law in Canada 3 (Aug. 2010), https://mcmillan.ca/files/Health_Law_in_ Canada.pdf, archived at https://perma.cc/8ZKS-Q5ZL.
 Kris Robinson, The Professional Framework for Midwifery Practice in Canada, in Comprehensive Midwifery: The Role of the Midwife in Health Care Practice, Education, and Research 8.1 (Karyn Kaufman ed., e-Book Foundry @ McMaster University), https://ecampusontario.pressbooks.pub/cmroleofmidwifery/chapter/the-professional-framework-for-midwifery-practice-in-canada/ (last visited May 15, 2019), archived at https://perma.cc/Q8JR-XP49.
 Id. (footnotes in original omitted).
 Canada’s Health Care System, supra note 1.
 US vs Canadian Healthcare: What Are the Differences?, American Institute of Medical Sciences (Mar. 29, 2018), https://www.aimseducation.edu/blog/us-vs-canadian-healthcare-differences/, archived at https://perma.cc/9FG3-8KAY.
 Canada Health Act R.S.C., 1985, c. C-6, https://laws-lois.justice.gc.ca/eng/acts/c-6/FullText.html, archived at https://perma.cc/Q486-23GP.
 Id. § 4.
 Annie Wang et al., Commentary, Medication Access via Hospital Admission, 63(5) Can. Fam. Physician 344, 345 (May 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5429045/pdf/0630344.pdf, archived at https://perma.cc/PR9Y-JHDL.
 Health Care Services for First Nations and Inuit, Health Canada, https://www.canada.ca/en/indigenous-services-canada/services/health-care-services-first-nations-and-inuit.html (last updated Aug. 9, 2018), archived at https://perma.cc/S4V5-WFHU.
 Midwifery is regulated in Ontario under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, https://www.ontario.ca/laws/statute/91r18, archived at https://perma.cc/BYJ6-H77G; and the Midwifery Act, 1991, S.O.1991, c. 31, https://www.ontario.ca/laws/statute/91m31, archived at https://perma.cc/FCE3-4CBX; the following regulations: General, O. Reg. 240/94, https://www.ontario.ca/laws/regulation/120335 archived at https://perma.cc/WD4H-WHR6; Registration, O. Reg. 867/93, https://www.ontario.ca/laws/ regulation/110168 archived at https://perma.cc/V2PJ-8JHX; Designated Drugs, O. Reg. 884/93, https://www.ontario.ca/laws/regulation/930884, archived at https://perma.cc/2Z3U-WVHH; and Professional Misconduct, O. Reg. 858/93, https://www.ontario.ca/laws/regulation/090388 archived at https://perma.cc/NKE7-MBQD; as well as by the College Bylaws, http://www.cmo.on.ca/resources/by-laws/, archived at https://perma.cc/9EXL-4X8J.
 Robinson, supra note 7, at 8.2.
 Health Professions Act [RSBC 1996] c. 183, http://www.bclaws.ca/Recon/document/ID/freeside/ 00_96183_01, archived at https://perma.cc/9WZ4-QUC5; Midwives Regulation B.C. Reg. 281/2008, http://www.bclaws.ca/civix/document/id/lc/statreg/281_2008; Bylaws for College of Midwives of British Columbia, https://www.cmbc.bc.ca/wp-content/uploads/2019/01/Bylaws-20181230.pdf, archived at https://perma.cc/CJ3A-N62Q.
 Midwifery is regulated in Quebec under the Midwives Act , L.R.Q., c. S-0.1, http://legisquebec.gouv.qc. ca/en/ShowDoc/cs/S-0.1, archived at https://perma.cc/WN8D-8LZD, and a number of subsidiary regulations.
 Year of Midwifery Regulation, Canadian Association of Midwives, https://canadianmidwives.org/ 2016/10/19/year-of-regulation/ (last visited May 15, 2019), archived at https://perma.cc/WBK2-237X.
 Mah, supra note 17.
 Robinson, supra note 7, at 8.4.
 Id. at 8.6.
 Id. at 8.5.
 Georgia Morley, To Doula or Not to Doula? Huffington Post (Feb. 23, 2017), https://www.huffingtonpost. ca/georgia-morley/to-doula-or-not-to-doula_b_14921396.html, archived at https://perma.cc/8JMG-WLJJ.
 Thinking About Hiring a Doula? Here Are Some Things to Know – Part 1, Spectrum Doula Collective (Apr. 10, 2018), http://www.spectrumdoulacollective.com/blog/2018/4/5/thinking-about-hiring-a-doula, archived at https://perma.cc/BXE4-FM2F.
Last Updated: 11/13/2019